R v Graham
[2006] QCA 106
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Graham[2006] QCA 106
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R v Graham[2006] QCA 106
R v Graham[2006] QCA 106
SUPREME COURT OF QUEENSLAND
CITATION: | R v Graham [2006] QCA 106 |
PARTIES: | R v GRAHAM, Peter Lindsay (applicant/appellant) |
FILE NO/S: | CA No 80 of 2006 DC No 3559 of 2005 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Application |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED EX | 12 April 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 April 2006 |
JUDGES: | McMurdo P, Keane JA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | 1.Application for leave to appeal against sentence allowed 2.Sentence imposed on applicant varied by ordering that applicant serve 40 days imprisonment instead of six months and that applicant be admitted to probation as at 12 April 2006 |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY - where applicant pleaded guilty together with co-offenders Johns and Middleton to unlawfully assaulting complainant and doing him bodily harm with aggravating circumstances of being in company and armed with a dangerous instrument - where applicant and Johns each sentenced to six months imprisonment and three years probation and Middleton sentenced to three months imprisonment and three years probation – where probation orders also required all three offenders to undergo an appropriate anger management course - where applicant claims that sentence imposed was manifestly excessive in all the circumstances - whether there were pertinent distinctions between involvement of applicant and of his co-offenders which would justify a different sentence imposed on applicant R v Middleton and Johns [2006] QCA 92; CA Nos 58 and 59 of 2006, 31 March 2006, approved |
COUNSEL: | R A East for the applicant/appellant C W Heaton for the respondent |
SOLICITORS: | Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent |
THE PRESIDENT: The applicant pleaded guilty on 30 March this year together with his co-offenders, Martin Geoffrey Johns and James Middleton, to unlawfully assaulting Leeson Rose and doing him bodily harm on 20 March 2005 with the aggravating circumstances that they were in company and armed with a dangerous instrument. The applicant and Johns were each sentenced to six months imprisonment and three years probation. Middleton was sentenced to three months imprisonment and three years probation. Each probation order had a special condition that the probationers receive and undergo any treatment or course in relation to anger management as may be deemed appropriate. The applicant Graham today contends that the sentence imposed was manifestly excessive.
The applicant was 20 at the time of the offence and 21 at sentence. He had some minor unrelated criminal history in 2003 and 2004 which was rightly considered by the learned primary judge as largely irrelevant so that it can be said he had no prior criminal history for like offences. Johns had one entry in his criminal history in 2003 for minor drug offences. Middleton had one prior entry in his criminal history for unauthorised dealing with shop goods.
Johns and Middleton successfully appealed against the sentence imposed on them to this Court, differently constituted, and their sentences were varied so that each was released on probation on 31 March 2006, the date of the delivery of the reasons for judgment: see R v.Middleton and Johns [2006] QCA 92; CA Nos 58 and 59 of 2006, 31 March 2006. The circumstances of the offending, the police investigation, the submissions at sentence and the judge's sentencing remarks are fully set out there so that I need not repeat them. After a careful and thorough review of the authorities relied on by Johns and Middleton and by the respondent, Jerrard JA, with whom Williams JA agreed, concluded that the learned primary judge erred in distinguishing between the sentences imposed on Johns and Middleton. Johns, who was 19 when he offended, was significantly younger than Middleton, who was 22, so that Johns could have expected some further leniency because of his greater immaturity. Jerrard JA determined that the six month term of imprisonment imposed on Johns was too high for an applicant of his age with sound future prospects when there was no finding of an overall unlawful purpose in the commission of the offence. While an order for some actual imprisonment was clearly justified on the facts of the case, the six month term imposed on Johns was too high in the light of his age and sound future prospects when there was no finding of an overall unlawful purpose in the commission of the offence. In Middleton's case, again while some actual imprisonment was clearly justified, the term he would have served by the delivery of judgment on 31 March was sufficient. Johns and Middleton had been granted bail pending appeal and in all the circumstances it was considered appropriate to avoid returning those young applicants to prison for a short period. Fryberg J agreed with the orders proposed by Jerrard JA. He considered that actual imprisonment for both Johns and Middleton was manifestly excessive in the light of the relatively minor injuries suffered by the complainant, that the weapon used was mace or something similar calculated to temporarily disable rather than permanently injure, that the offenders were not being sentenced on the basis that the purpose of the gang raid in which they participated was to steal or recover marijuana, but that the complainant was not "a paragon of virtue" and that the applicants ceased the assault when things got out of hand with the complainant's use of a knife on Middleton.
Mr Heaton on behalf of the respondent properly concedes that there are no pertinent distinctions between the involvement of this applicant (Graham) and Johns and Middleton that would justify a different sentence being imposed on Graham. Having regard to principles of parity and the further 40 days imprisonment now served by Graham and not served by Johns and Middleton, the application for leave to appeal should be granted, the appeal allowed by varying the sentence imposed by ordering that the period of imprisonment to be served be 40 days instead of six months and by admitting him to probation today, 12 April 2006.
KEANE JA: I agree.
CHESTERMAN J: I agree.
THE PRESIDENT: Those are the orders of the Court.